GOBARDHAN Vs. RAGHUBIR SINGH

JUDGEMENT

(1.) Second appeals 1684 of 1926 and 559 of 1927 arise out of the same suit brought by Badri Singh, Baldeo Singh and Raghubir Singh for redemption, on foot of two documents, one dated 10 July 1917 and the other dated 11 July 1917, alleged to evidence a transaction of mortgage, and in the alternative for possession of the property in suit on foot of the second of the two documents treating it as an agreement to reconvey the property. The facts in detail are these: Gayadin was originally the owner of the property in dispute. By the earlier deed above mentioned he purported to sell the property for Rs. 1400 to Gobardhan appellant before this Court. By the second of those deeds Gobardhan, the vendee, agreed to reconvey the property sold to him by the first deed, on receipt of Rs. 1,400 to Gayadin or his male lineal descendants at any time they or any of them desired to repurchase, Gayadin died, and Raghubir, plaintiff 3, is his son and legal representative. It has been found by the lower appellate Court that Raghubir relinquished his right of repurchase under the agreement dated 11 July 1917 by a document executed by him on 3 February 1920 which was not registered. The lower appellate Court had also found that this deed was for consideration and that the relinquishment is valid except for want of registration, which in its view was compulsory. Subsequently, on 15 January 1924, Raghubir sold two-thirds of his rights under the agreement of 11 July 1917 to Badri and Baldeo plaintiffs 1 and 2. The present suit was brought by Badri, Baldeo and Raghubir, claiming possession of the property in suit treating the transaction evidenced by the deeds of 10 July 1917 and 11 July 1917 as one of mortgage, and in the alternative, as already stated, on the basis of the agreement dated 11 July 1917, giving them the rights to repurchase the property.

(2.) The Court of first instance at first dismissed the suit, holding that the transaction did not amount to a mortgage, and that the plaintiff had not claimed any relief explicitly on foot of the agreement dated 11 July 1917. On appeal the lower appellate Court allowed amendment of the plaint so as to contain the alternative relief of possession on foot of the agreement dated 11 July 1917. The lower appellate Court remanded the suit to the Court of first instance for a finding on the question whether the plaintiffs were entitled to succeed on the basis of the agreement dated 11 July 1917, assuming the transaction of 10 July 1917, taken with the agreement was not one of mortgage. The Court of first instance held that plaintiffs 1 and 2 acquired no interest under the deed dated 15 January 1924, because Raghubir had no assignable interest. His right, whatever it was, created by the agreement of 11 July 1917 was in personam. On receipt of the finding of the first Court the lower appellate Court dismissed the suit of plaintiffs 1 and 2 but decreed possession on payment of Rs. 1,400 to Raghubir. As regards the deed of relinquishment dated 3 February 1920, which was set up as a bar against any possible claim by Raghubir, who, according to the defendant, had relinquished all rights by that document, it was held that in the absence of registration it was not admissible in evidence. In that view Raghubir's right to repurchase was left unaffected. The defendant has filed appeal No. 1684 of 1926, impugning the decree of the lower appellate Court in so far as it is in favour of Raghubir. Second appeal No. 559 of 1927 has been preferred by Badri and Baldeo in so far as they have not been held to be entitled to any relief, the transfer by Reghubir in their favour being held ineffective.

(3.) The learned advocate for the appellant in appeal No. 559 of 1927 has contended that the sale deed of 10 July 1917 and the agreement of 11 July 1917 should be read together and considered to evidence a transaction amounting to a mortgage. The lower appellate Court has held that the requisite conditions to make the transaction a mortgage are wanting. We think that the view of the lower appellate Court is correct. Unless the property in dispute can be considered to be no more than a security and the money advanced as a loan, the transaction cannot be characterized as a mortgage. The first deed conveys in explicit terms all right, title and interest of the vendor without any reservation of any kind. The second document merely gives a right of repurchase to specified individuals, namely the vendor and his lineal male descendants. It is not a right which can run with the land, nor is it a right which can enure for the benefit of the legal representatives of the vendor. It is no more than a privilege. There is no subsisting right to a debt recognized by these documents. The property affected by them can in no sense be considered to be mere security. Under these circumstances we think that the finding of the lower appellate Court that the two documents relate to two different transactions, the first evidencing a transaction of sale and the second evidencing an agreement by the vendee to resell the property under given conditions is correct.